Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Ordinance 2021

Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Ordinance 2021
Legislative Council of Hong Kong
Long title An Ordinance to amend the Interpretation and General Clauses Ordinance to explain the meaning of a reference to upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region of the People's Republic of China; to amend the Oaths and Declarations Ordinance to include in Part IV of the Ordinance an oath to be taken by every member of the District Councils, the requirements for taking the oaths specified in that Part and the consequences of declining or neglecting to take an oath; to amend the Legislative Council Ordinance and the District Councils Ordinance to add new grounds for disqualification from being nominated as a candidate for election as a member of the Legislative Council or as a member of a District Council and for disqualification from being elected, and from holding office, as such a member, to remove the time limit within which proceedings may be brought by the Secretary for Justice against a person on the ground of disqualification from acting as such a member and to provide for suspension of functions and duties of such a member on certain of such proceedings being brought by the Secretary for Justice; to amend the Hong Kong Court of Final Appeal Ordinance to provide for application for leave to appeal to the Hong Kong Court of Final Appeal in relation to such proceedings; to amend the Chief Executive Election Ordinance to add new grounds for disqualification from being nominated as a candidate for election of the Chief Executive and from being elected as the Chief Executive; to amend the National Anthem Ordinance to add the oath-taking ceremony by members of the District Councils as an occasion on which the national anthem must be played and sung; and to provide for related matters.[1]
Citation	Ordinance 13 of 2021
Territorial extent	Bill title	Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021
Introduced by	Secretary for Constitutional and Mainland Affairs Erick Tsang
Introduced	26 February 2021 (2021-02-26)
First reading	17 March 2021 (2021-03-17)
Second reading	12 May 2021 (2021-05-12)
Third reading	12 May 2021 (2021-05-12)
Amends
Interpretation and General Clauses Ordinance Oaths and Declarations Ordinance Interpretation and General Clauses Ordinance Hong Kong Court of Final Appeal Ordinance Legislative Council Ordinance District Councils Ordinance Chief Executive Election Ordinance National Anthem Ordinance High Court Ordinance Electoral Affairs Commission Ordinance
Status: In force

The Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Ordinance 2021 (

In the 2016 New Territories East by-election for the Legislative Council, pro-independence activist Edward Leung ran for the office and fared a better-than-expected result by obtaining more than 15 per cent of the popular vote. In the following general election in September, the returning officers unprecedentedly invalidated Edward Leung and five other localists' nominations for their pro-independence inclination.^[4] The decision was challenged by the leading lawyers in Hong Kong, who questioned whether returning officers had the power to investigate the "genuineness" of candidates' declarations and accordingly disqualify their candidacies. In their joint statement, it wrote that "[the Section 40 of the Legislative Council Ordinance] does not give the returning officer any power to inquire into the so-called genuineness of the candidates' declarations, let alone making a subjective and political decision to disqualify a candidate without following any due process on the purported ground that the candidate will not genuinely uphold the Basic Law." It also wrote that "arbitrary and unlawful exercise of powers by government officials ... are most damaging to the rule of law in Hong Kong."^[5]

In the end, there were still six

Another wave of

On 30 June 2020, the National People Congress Standing Committee (NPCSC) imposed the national security law on Hong Kong, which stipulates that a candidate who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region in accordance with the law besides other new restrictions,^[2] which required the amendment to the existing local legislation to implement the new requirements imposed by the NPCSC.

Contents

According to the government's press release, the bill mainly comprises the following six key areas of amendments which seek to:^[2]

1. amend the Interpretation and General Clauses Ordinance (Cap. 1) to add the legal requirements and conditions of "upholding the
   Basic Law and bearing allegiance to the Hong Kong Special Administrative Region" with reference to the 2016 NPCSC Interpretation, the national security law
   and the 11 November 2020 NPCSC's "Decision on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region";
2. impose an oath-taking requirement for
   District Council
   members which would be required with the same criteria as other public officers under Article 104 of the Basic Law;
3. lay out the concrete oath-taking requirements in the Oaths and Declarations Ordinance (Cap. 11), including that the oath-taking should comply with the oath-taking procedure and ceremony; an oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office;
4. specify the arrangement of the oath administrator by standardising the arrangement for the Chief Executive or a person authorised by the Chief Executive to administer the oaths for Executive Council members, Legislative Council members, judges and other judicial officers, and District Council members;
5. amend the Legislative Council Ordinance (Cap. 542) and the District Councils Ordinance (Cap. 547) to specify that a person who has breached an oath, or failed to fulfil the legal requirements and conditions on upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region will be disqualified from holding the office; and provide for the mechanism in case of such a breach or failure; and
6. introduce restriction in Chief Executive, Legislative Council and District Council elections such that persons who have been disqualified from entering on an office for declining or neglecting to take an oath, breached an oath or failed to fulfill the legal requirements and conditions on "upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region", would be disqualified from being nominated or elected in the relevant elections held within five years.

Concerns

Some concerns regarded the "negative list" which proscribed unpatriotic acts in the bill was far too vague and could put judges and politicians under intense pressure if their rulings or voting patterns were viewed as challenging the government. The bill intended to include the community-level District Councilors to be scrutinised for their oath-taking manners, was expected to pave the way for mass disqualification of the pro-democracy councillors who humiliated Beijing when they won

The Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021 was passed by a 40-to-1 vote in the pro-Beijing-dominated legislature on 12 May 2021, with Civic Passion's Cheng Chung-tai the only one voted against.^[9] Chief Executive Carrie Lam on 20 May signed the bill into the law which came into effect after it is published in the Gazette on 21 May.^[10]

Effects

Resignations

In the past six months before the bill passage, dozens of opposition District Councillors resigned for refusal to take an oath under the new law.^[9][11] In early July 2021, the government reportedly considered banning 230 councillors to take oath of office and would ask them return their accrued salaries which worth around a million dollars. Such reports triggered a mass resignation of more than 260 councillors, while eight other had been unseated as they were in custody or had left the city.^[12]

Disqualifications

The government began the oath-taking ceremonies for the District Councillors from September 2021, and said it would consider the past conduct of the oath-takers when reviewing whether their pledges of allegiance are sincere.^[12] Following four oath-taking ceremonies starting in early September, oaths taken by 49 District Councillors were ruled invalid without any explanation, leaving more than 70 per cent seats in the 18 District Councils vacant. Under the amended Oaths and Declarations Ordinance, the disqualified District Councillors would be banned from standing in elections for the next five years, including former Democratic Legislative Councillor Roy Kwong and James To and some other Democrats who had expressed their interest in running in the upcoming Legislative Council election in December.^[13]

Responses

On 21 October 2021,

In the 21 October statement, an EU spokesperson said that the expulsions and resignations negate the results of the 2019 District Council election and had weakened Hong Kong's "democratic governance structure". "The protection of civil and political rights in Hong Kong is a fundamental part of the 'One Country, Two Systems' principle, which the EU supports," the spokesperson said. "The EU calls on China to act in accordance with its international commitments and its legal obligations and to respect Hong Kong's high degree of autonomy and rights and freedoms."^[16]

References

External links

• Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021